DPP v Robinson

[2000] VSCA 190

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No. 104 of 2000

DIRECTOR OF PUBLIC PROSECUTIONS

v.

PAUL ALLAN ROBINSON

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JUDGES:	PHILLIPS, C.J., CHARLES and CALLAWAY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 September 2000
DATE OF JUDGMENT:	21 September 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 190

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Criminal law – Sentencing – Publishing a misleading written statement as a director –
Respondent “discharged without conviction” – Director’s appeal – Seriousness of offence – Personal circumstances of respondent – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle, Q.C.	P.C. Wood, Solicitor for Public Prosecutions
For the Respondent	Mr. R. Richter, Q.C. and   Mr. P.G. Lacava	Rockman & Rockman

PHILLIPS, C.J.: 

1. I shall ask my brother Callaway to give the first judgment.

CALLAWAY, J.A.: 

1. On 5th April 2000 the respondent pleaded guilty to six counts of publishing a misleading written statement as a director, contrary to the provisions of s.85(1) of the Crimes Act 1958. The maximum custodial penalty for that offence at the relevant time was seven years' imprisonment. It matters not that, on the hearing of the plea, the learned sentencing judge was informed by both sides that it was seven-and-a-half years' imprisonment. After hearing that plea and reserving his decision, his Honour decided that the appropriate disposition was that the respondent be discharged without conviction. The appeal before us, which is brought by the Director of Public Prosecutions pursuant to s.567A of the Crimes Act, was argued on the footing that the order his Honour made was pursuant to s.76 of the Sentencing Act 1991.

1. The principles applicable to Crown appeals are not in contention.  To the authorities cited by counsel may be added Lowndes v. R.[1], especially at [15] and, not irrelevantly to the present case, [38] to [40].

   [1](1999) 195 C.L.R. 665

1. There are five grounds in the notice of appeal but Mr McArdle advanced three contentions which go to its heart.  The first is that the sentence (they are, of course, separate sentences but for convenience I shall refer to "the sentence") is of such manifest inadequacy as to constitute an error in principle.  The second is that the sentence is so disproportionate to the seriousness of the crime as to shock the public conscience.  The third is that this case may furnish the Court with an opportunity to provide guidance concerning occasions when a sentencing judge or magistrate should or should not record a conviction.

1. The plea was conducted on agreed facts, which are set out at the beginning of the learned judge's sentencing remarks.  I shall not repeat them.  His Honour's reasons thereafter fall into three parts.  First, he accepted a submission made on behalf of the respondent that these were unusual examples of the offence in question and gave five reasons why that was so.  Some of the reasons given are explicable only in the light of exchanges on the plea;  others are, with respect, debatable.  But there is no gainsaying his Honour's conclusion expressed much later in the sentencing remarks that this was a highly unusual case.

1. The first of the three parts of the sentencing remarks that I have identified concluded with an acknowledgment of certain submissions made by the prosecutor, namely, that investors and potential investors expect, and are entitled to receive, strictly truthful statements from officers of companies as to the affairs of those companies and that false statements of the kind with which this case is concerned might be said to constitute a species of breach of trust.  The second part of his Honour's sentencing remarks began with the statement that the instant offences nevertheless lay at the very bottom of the scale of seriousness of such offences and did not reflect serious moral guilt.  This is a matter to which I shall return, although I shall say at once that there is room for debate about that also, especially the second part of his Honour's conclusion, but it led into the pith and substance of his reasons for selecting the disposition that he did, for his Honour continued:

"Nevertheless, had they fallen for curial consideration shortly after their commission, I should think that a conviction of them ought to have been recorded.  But, in fact, more than ten years have elapsed since their commission, and the passage of those years places the offences in a wider perspective than would have existed shortly after their commission."

I do not understand his Honour to have meant that the character of the offences themselves could have changed with the effluxion of time, for he immediately proceeded to explain what that wider perspective was:

"Those ten years have been spent in business by the prisoner.  Honourably revealing to those with whom he has dealt the existence of criminal proceedings against him, he has, nevertheless, gained their trust to the extent of very considerable sums of money.  He has not betrayed any of that trust and has conducted his businesses with a rigorous propriety, as is attested by the references in Exhibit 2.  Moreover he has done so in the teeth of a need to expend large sums in meeting charges arising out of his employment by OST Friendly Society which have proved baseless.

In this perspective one can find a man who has behaved impeccably, both before and long after these offences, which can then be seen to have been uncharacteristic lapses of honesty in a life otherwise characterised by propriety, diligence and sound judgment.  Seen in this perspective, I am of opinion that to impose convictions for these ostensibly serious offences would be to visit upon the prisoner a punishment disproportionate to the offences in the circumstances of their commission and of his life."

I agree with Mr McArdle that the reference to disproportion must be taken to refer in part to the fact that, if convicted, the respondent would be disqualified from acting as a company director without leave of the court.  Compare Stewart v. Alter[2], at pp.13-16.

[2]Unreported, Full Court, 13^th February 1984

1. In the third part of his sentencing remarks the judge considered the various dispositions that might be made without conviction, rejecting a community-based order, a fine and an undertaking to be of good behaviour.

1. I would not minimise the seriousness of offences against s.85 of the CrimesAct and like provisions or the importance of general deterrence in such cases.  The latter was emphasised by this Court in Director of Public Prosecutions v. Bulfin[3].   But, whilst I might differ from his Honour as to degree, I do not think that he minimised the seriousness of such offences.  Rather he considered the personal circumstances of the respondent to be compelling for the reasons encapsulated in the passages that I have read.  Those passages, understood against the background of the plea, leave me in no doubt that the decision not to impose a conviction was within range.  That being so, the first and second contentions advanced on behalf of the appellant are bound to fail, and it would be a work of supererogation to rehearse Mr McArdle's submissions in detail. 

   [3][1998] 4 V.R. 114

1. That conclusion also means, of course, that this case is not an appropriate vehicle for this Court to give guidance of the kind proposed or to expound the meaning of s.8 of the Sentencing Act.

1. Once the decision not to convict is upheld, if only in the sense that it was open to the judge, it cannot be said that the decision not to impose a fine was so lenient as to constitute an error of principle or to shock the public conscience.  I hasten to say that I did not understand Mr McArdle to advance any such submission.

1. It should be added that an aspect of the plea was that the respondent was an honourable man who had been plagued by false allegations made by Bulfin.  The first of those contentions was expressly accepted by the judge and is not challenged on appeal.  The second may well have been accepted by implication, so that references to the respondent in Director of Public Prosecutions v. Bulfin should be understood in that light.

1. For these reasons, which are brief but which reflect my clear impression as to the just disposition of this case, I would dismiss the appeal.

PHILLIPS, C.J.: 

1. Through much of the appellant's submissions I entertained the impression that the learned sentencing judge had treated the offences of the respondent as minor, or even trivial.  His Honour's resort to metaphor, his request to the respondent to be good enough to wait in court while the reasons for sentence were delivered, his description of the offences as lying "at the very bottom of the scale of seriousness of such offences" and his references to the offences being "ostensibly" serious (when that term is often implicitly opposed to "actually") all made their contributions to this impression.  If his Honour had so regarded the offences, in my opinion he would have fallen into error, and no one should depart this case with the view that they were anything other than serious.  Giving the matter careful consideration, however, my impression did not harden into satisfaction that the learned judge in fact treated these offences as minor or trivial.

1. Secondly, I have entertained misgiving as to the way in which his Honour treated counsel's submission that the expression "at call" might admit of serious argument as to its meaning, but on reflection I think all that counsel was putting was that, had a trial eventuated, it would have been lengthy, with legal argument contributing to its length, and that the respondent was entitled to some credit for saving court time and expense by his pleas of guilty. 

1. Thirdly, I have been troubled by his Honour's statement that there was no potential for loss for anyone arising from the relevant misdescription.  In this instance, however, I am not persuaded that this view played any significant part in the respondent's ultimate disposition.

1. As I have indicated, I think the offences of the respondent were serious and, had I been the sentencing judge, I might well have imposed a more severe penalty upon him, but that is not to the point.  The question is:  has it been shown that the sentence imposed lay altogether outside the range of those properly available to the learned judge?  I am not persuaded that it did, particularly having regard to the powerful evidence as to the personal circumstances of the respondent, including the passage of time.

1. I would dismiss this appeal.

CHARLES, J.A.: 

1. The offence constituted by s.85(1) of the Crimes Act 1958 is inherently serious and I have no doubt that the facts supporting the counts on the presentment to which the respondent pleaded guilty in themselves demonstrated the criminality of his conduct. The offences would ordinarily have demanded a conviction and a significant penalty.

1. I would accept the submission by Mr McArdle, who appeared in this Court for the Director, that general deterrence is an important consideration in cases such as these, and, further, that the fact that the respondent had no prior convictions and was otherwise of good character has less than usual significance for the reasons stated in Director of Public Prosecutions v. Bulfin[4].   There was, as the sentencing judge said, an element of breach of trust in the respondent's conduct.

   [4][1998] 4 V.R. 114 at 131

1. I would also accept the submission made by the prosecutor during the plea that the motive for these offences was that the bond fund in question had been marketed on the basis that it would attract money to be invested only in these very conservative bank bills and government Treasury bonds and bank deposits, and not on any assumption that the money might be invested in commercial mortgages.  I accept also that had investors been told the truth a number of them might well have wished to withdraw their invested funds.

1. Under s.567A of the Crimes Act the Director must, however, show that the judge's disposition was manifestly inadequate, relevantly here in the sense that at least a conviction must have been recorded in all the circumstances.

1. The matters to which Callaway, J.A. has referred mark this case out as most unusual, if not unique.  The case is very much dependent on its own facts.  But, although I would myself have been disposed at least to record convictions on the counts to which the respondent pleaded guilty, I am unable to say that the disposition upon which the sentencing judge decided was not open to him, substantially for the reasons given by Callaway, J.A.

1. I would therefore dismiss the appeal.

PHILLIPS, C.J.: 

1. The order of the Court is that the appeal of the Director of Public Prosecutions for the State of Victoria stands dismissed.

1. An indemnity certificate will be granted to the respondent.